Mitigation

MITIGATION

The California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA) both require that the potential impacts on species, habitat and farmland from development be considered. Measures are taken to balance those negative impacts through a process known as “mitigation.” Mitigation is frequently required when significant impacts are identified by the environmental review process. Mitigation is defined in Section 15370 of the California Code of Regulations (CEQA Guidelines) as:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing substitute resources or environment.

The need to provide measures to avoid, minimize, rectify, reduce, and/or compensate for the loss of habitat and farmland resulting from development or other land use changes has fostered the exploration of a variety of mitigation approaches in California over the last 25 years. Preservation of habitat and land to offset the loss of those resources is an approach that is fundamental to the concept of mitigation. Mitigation strategies include direct protection of land by acquisition of fee title or conservation easements, participation in a mitigation bank, term protection via deed restrictions, and in lieu fees for acquisition. Of these approaches, conservation easements are one of the most common tools used to mitigate for the loss of habitat and farmlands. Recent court cases such as Masonite[1] have upheld the validity of farmland conservation easements as a means of implementing required mitigation for the loss of other farmland due to development projects.

[1] Masonite Corporation v. County of Mendocino, No. A134896 (First Dist., July 25, 2013)

Land is frequently protected to provide “mitigation” to offset the adverse impacts of development. For example, the deleterious effects of constructing a new highway that would destroy wetlands could be mitigated by acquiring and protecting other wetlands. Similarly, a housing development that would pave over farmland would mitigate that impact by acquiring and protecting other farmland. Mitigation banks are simply formed through the acquisition and protection of land by purchasing land or a conservation easement in excess of what is currently required by any specific development project. The excess land or conservation easement that is available for use to mitigate for other projects is the “mitigation bank.”

There are two basic scenarios:

In lieu fees are another approach to fulfilling mitigation requirements and can be a source of funding to purchase conservation land or conservation easements. “In lieu” of the project proponent acquiring mitigation land or conservation easements, in lieu fees allow the project proponent to pay a specified fee to the lead agency or other designated agency. The in lieu fee is then intended to be used to acquire the required mitigation land or conservation easement. The acquisition is undertaken by a third party such as a land trust or government agency.

A nexus study should be prepared to defensibly establish the amount of an in lieu fee; provisions must be made so that the fee is regularly updated to ensure it is responsive to changes in real estate values. The in lieu fee should include all costs associated with providing the required mitigation including: